Use Variance Denied By Second Department Regardless Of Alleged Prior Precedent: Village of Patchogue

The Second Department recently reversed a Suffolk County Supreme Court decision granting a use variance for a mother-daughter residence in the Village of Patchogue (the “Village”), in spite of statements made on the record by the Zoning Board of Appeals (“ZBA”) Chairman implying prior precedent approving such applications.

In June 2014, the petitioner applied to the Village seeking the conversion of her two-car garage into an apartment for her 81 year old mother of limited financial means. Unfortunately, Patchogue’s zoning code does not define “mother-daughter” or permit an “accessory apartment” in its single-family residential zone. As a result, because such use is prohibited, the petitioner was required to appeal that decision to the ZBA for a use variance pursuant to Village Law 7-712-b(2).

At the public hearing before the ZBA, no one opposed the application, and one neighbor spoke in favor of it. However, as an apparent precursor to denial, the Chairman stated on the record that “[n]ot many [such applications] have been granted at all.” Not surprisingly, the ZBA denied petitioner’s application to convert her two-car garage into living space.

The petitioner subsequently commenced an Article 78 to annul the ZBA’s decision as arbitrary and capricious. The Chairman’s statement later became the focal point for petitioner’s argument that prior alleged precedent effectively mandated the ZBA approve petitioner’s garage conversion.

Later that year, the Supreme Court annulled the ZBA’s denial as arbitrary and capricious for failing to follow its own precedent. See Gray v Village of Patchogue Zoning Board of Appeals. In its decision, the Supreme Court incorrectly implemented the balancing test for an area variance instead of a use variance. The court appeared to rest its decision heavily on an implied prior precedent based on the Chairman’s above quoted statement. Based on that statement, the lower court constrained the ZBA to grant the garage conversion, holding that “administrative due process prohibits inconsistent treatment of similarly situated properties”. Id.

In reversing the Supreme Court’s decision, the Second Department clarified that petitioner’s application was for a use variance. See Gray v Village of Patchogue Zoning Board of Appeals, 164 AD3d 587 [2d Dept 2018]. The Appellate Division affirmed the ZBA’s denial because the petitioner had failed to satisfy the more onerous “unnecessary hardship” element required for a use variance. More importantly, the Appellate Division determined that there was no evidence that the ZBA failed to adhere to prior precedent. Contrary to the petitioner’s contention, the Board provided a rational explanation for reaching a different result.

Accordingly, this decision should serve as a cautionary tale for applicants and practitioners to not place too much stock on prior approvals by municipal boards. Although precedent is important, each property is different and may yield a different result.